Sorry that we haven’t had anything up on the blog lately. We have three merits briefs due at the Court within a week (two tomorrow).

Next week, I’ll be doing the color commentary (for lack of a better term) for the NPR coverage of the hearings and will be live blogging them on the Nomination Blog.

PrawfsBlawg has this response to Dahlia Lithwick’s recent article on the “living” Constitution and this post on a speech Justice Stevens recently gave, profiled by the New York Times here.

The Right Coast also comments on Justice Stevens’ speech here.

Legal Theory Blog has this post discussing “The wisdom of Hercules”, a short piece in the Economist on modeling and analysis of Supreme Court decisions and their citation networks.

Election Law Blog has this post discussing a letter Senator Specter, chairman of the Senate Committee on the Judiciary sent to Judge Roberts indicating that Senator Specter intended to ask Judge Roberts about his views on the Supreme Court’s recent federalism case, Tennessee v. Lane. According to Rick Hasen, the vitality of Tennessee v. Lane is very relevant to the question of congressional power to uphold a renewed section 5 of the Voting Rights Act. A letter Hasen has written to Specter notes that Judge Roberts’ past writings on the Voting Rights Act give special reason for concern that he would not follow Justice O’Connor’s position in Tennessee v. Lane as precedent for upholding a renewed section 5.

The Volokh Conspiracy has this post discussing this Wall Street Journal article on Justice Stephen Breyer’s new 161-page book to be released in a few weeks: “Active Liberty: Interpreting Our Democratic Constitution.”

The Legal Affairs Debate Club asks, “Is Assisted Suicide Legal?” This October, in Gonzales v. Oregon, the Supreme Court will hear a challenge to Oregon’s “Death with Dignity Act” which allows terminally ill patients told they have six months to live the right to commit suicide with the aid of a doctor. Debating the issue is Jonathan Adler, visiting professor at George Mason University and Wesley J. Smith, an attorney and the author of Culture of Death: The Assault on Medical Ethics in America.

Dahlia Lithwick asks, “Does Anyone Believe in a Living Constitution Anymore?”

ACSBlog has posted this analysis of Justice Ginsburg’s confirmation hearings titled,”The Confirmation Hearings of Justice Ruth Bader Ginsburg: Answering Questions While Maintaining Judicial Impartiality.”

SCOTUSblog commenters will notice that, beginning today, they will be required to register in order to post comments on the blog. We very much appreciate the many interesting and thought-provoking comments that we have received over the past few years and hope that they will continue; we implemented the registration feature because the comments have recently been flooded (literally to the tune of several hundred per day) with invitations to play online poker, refinance our mortgage, and buy various medications online. They’re attractive offers and all, but we simply couldn’t keep up with the onslaught. More importantly, we suspect that in the tedium of deleting all of the spam, we may have accidently deleted legitimate comments (and, if so, we apologize). Thanks for your patience during this transition, and please keep those comments coming!

The Supreme Court on Monday refused — as it was expected to do — to reconsider its controversial ruling expanding the power of local governments to seize private property for economic development. The action came as the Justices issued several routine orders while the Court remains in its summer recess. (The case was Kelo v. City of New London, 04-108; the Court divided 5-4 in that decision.).

The Court’s rules make it exceedingly difficult for a party to gain a rehearing of a decided case. Even so, property rights advocates had tried that maneuver as part of an energetic campaign to keep the issue alive and thriving. Efforts are being made in a number of state legislatures and in Congress to curb the use of the power of “eminent domain,” even though the Court had enhanced that authority if local officials opt to use it.

Monday’s list of orders indicated that Justice Sandra Day O’Connor was continuing to participate in the Court’s work over the summer. One of the orders — a denial of rehearing — indicated that she had disqualified herself from that particular action, a sign that she had taken part in all of the other orders. Forty-four cases were denied rehearing, including Kelo.

O’Connor has said she would continue to serve until her successor is qualified. That is expected to occur early in the new Term that opens Oct. 3.

Among Monday’s orders, the Court agreed to allow the Solicitor General to join in arguing for the federal government in 04-698, Schaffer v. Weast, a test of whether parents or public school officials have the burden of proof in a dispute over the educational placement of a disabled child. The case is scheduled for oral argument on Wednesday, Oct. 5.

In honor of Justice Stevens’s thirtieth year on the Court, Fordham University School of Law has organized a two-day conference, The Jurisprudence of Justice Stevens. The conference will be held on September 30 and October 1 and will feature scholars from around the country, as well as remarks by Justice Stevens himself. The event is free and open to the public; you can view the schedule here
and register here.

Foreign nationals being held as terrorism suspects at the U.S. Navy’s prison in Guantanamo Bay, Cuba, have urged the D.C. Circuit to keep their case alive, arguing that a recent Circuit Court ruling does not undercut their demand that the Bush Administration justify in court their continued detention. They outlined a narrow view of the decision July 15 in the case of Hamdan v. Rumsfeld – in vivid contrast to the broad interpretation given that decision by Justice Department lawyers early this month.

The fact that they have been allowed by the Supreme Court to file habeas challenges to their detention, the captives’ attorneys argued, means that they have a right to a court inquiry into the reasons for being held and to release, if those reasons are found inadequate. In fact, because the District Court has jurisdiction to consider their habeas petitions, the detainees’ brief contended, means that the Court must go forward and examine the validity of any further captivity. They need show no denial of constitutional rights before such an examination is made, the brief contended. (The brief was filed last week, under seal, and has just been publicly released.)

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(This is one of a series of posts on the impact that Supreme Court decisions have on later lower court rulings.)

If a display of the Ten Commandments is put up on city property, it stands there alone, and the government had no historical or other non-religious reason for putting it there, is it unconstitutional as an official embrace of religion? The answer would seem to depend upon how one reads Justice Stephen G. Breyer’s decisive vote and concurring opinion in the Court’s widely splintered, 5-4 decision on June 27 in Van Orden v. Perry. The answer, though, is no, according to a new decision by the Eighth Circuit — apparently the first ruling at that level to apply the Van Orden precedent to another Commandments display.

In a 10-2 en banc decision on Friday, the Circuit Court upheld the display of a stone tablet of the Ten Commandments, the only monument in a 45-acre city-owned and maintained park in the small Nebraska town of Plattsmouth (ACLU Nebraska Foundation, et al., v. City of Plattsmouth, Circuit docket 02-2444). The monument is, in fact, identical to the one that a 5-4 Supreme Court upheld in the Van Orden case, and it was donated by the same source, the Fraternal Order of Eagles.

Scores of these monuments were displayed across the country as gifts of the Eagles, and those displays have produced in recent years an array of conflicting results in lower court rulings, before the Supreme Court stepped in to resolve the issue in Van Orden, involving the Commandments monument on the grounds of the Texas state capitol in Austin. Only one thing, however, was definitively resolved by Van Orden – context means everything in judging such government displays of the Commandments.

It appears that the identical nature of the monument and of its donor, and the fact that both displays had stood for years before being challenged in court, may be where the similarity in context ends between the Texas and Nebraska displays.

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The Volokh Conspiracy has this post on using Chief Justice Rehnquist’s periodic absences from the bench this year as an opportunity to test the influence of the Chief Justice by comparing results in cases over which Rehnquist presided versus those over which Stevens presided as acting Chief to see whether there is any systematic differences in the outcomes depending on the presiding Chief.

Here is Underneath Their Robes on Justice Breyer’s 67th birthday which was earlier this week.

ElectionLawBlog has this entry on the cert petition in the Florida felony voting rights case, which was profiled by SCOTUSBlog earlier this week.

Last week, Justice Stevens gave this address to the American Bar Association at the Thurgood Marshall Awards Dinner honoring Abner Mikva.

The deepening controversy over denial of voting rights to those convicted of serious crimes — an issue that has split the Circuit Courts in recent years — is back at the Supreme Court, in an appeal challenging a Florida law. The petition for certiorari in Johnson v. Bush, Governor of Florida (docket 05-212) was filed a week ago by attorneys with the Brennan Center for Justice in New York.

The Supreme Court twice passed up review of that issue last Term, refusing in November to hear cases from Washington State and New York State. But there were good reasons for the Court not to get involved in either of those cases at that point: the Washington case had been sent back by the Ninth Circuit to a District Court for further fact-finding, and the New York case came to the Court amid clear indications that the Second Circuit was going to grant review of that case en banc if the Supreme Court refused to review a panel decision.

The Washington case (Farrakhan, et al, v. Locke, et al.) returned to U.S. District Court and is now scheduled to go to a non-jury trial in Spokane beginning next March 6. (In the District Court, it is docket 96-76). The en banc Second Circuit held a hearing on the New York case (Muntaqim v. Coombe, Circuit docket 01-7260) on June 22, and a decision is pending.

The Brennan Center for Justice had urged the Supreme Court not to hear the issue last Term, suggesting that the Justices instead await an en banc ruling by the Eleventh Circuit in the Johnson case (Circuit docket 02-14469).

That Court issued its ruling in that case on April 12. It decided that it does not violate the Fourteenth Amendment’s guarantee of equality for a state to deny those convicted of felons the right to vote, and to withhold that right even after they have completed their sentences. That part of the 12-judge decision produced only one dissent. The Court said that, even if an original 1868 ban on felon voting was motivated by racial bias, that was cured when Florida adopted a new and “markedly different” version of the ban in 1968.

Over two dissents, the Eleventh Circuit ruled that Congress did not intend the Voting Rights Act, and its protection in Section 2 of minorities’ voting rights, to apply to felon disenfranchisement laws. That part of the ruling conflicts with an earlier decision by the Ninth Circuit in the Washington case.

The Johnson appeal presents these two questions:
“1. Is a permanent felony disenfranchisement provision — like all other voting qualifications — subject to challenge under Section 2 of the Voting Rights Act on the ground that it results in a denial of the right to vote on account of race?”
“2. When a provision was enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more than one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving that it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?

The Supreme Court has twice confronted felon disenfranchisement controversies in the past, but the last time was in 1986, in Hunter v. Underwood. A prior decision came in 1974 in Richardson v. Ramirez.

The dispute has intensified in recent years, as liberal advocacy groups have stepped up a litigation, lobbying and public relations campaign attempting to link the denial of voting rights to the race of individuals caught up in the criminal justice system, and thus facing the loss of voting rights if convicted. It is estimated that more than a third of all disenfranchised felons are black and that, if a current trend continues, the rate of disenfranchisement of black men could reach 40 percent in the states that have such laws.

Only two states, Maine and Vermont, allow convicted felons to vote.

PrawfsBlawg has this entry on two new papers on the Solomon Amendment litigation (the litigation is known as the FAIR case, for Forum for Academic and Institutional Rights). The Solomon Amendment litigation is due to reach the Supreme Court this Term.

Sentencing Law & Policy ponders the next SCOTUS Blakely/Booker case.

According to Bob Bauer of More Soft Money Hard Law, the FEC has released the General Counsel’s proposed changes in the rules on “electioneering communications”: communications paid by corporations and unions that, because they refer to a federal candidate, cannot be aired within 30 days of a primary and 60 days of a general election. This is another in a series of adjustments to the Shays v. FEC litigation that followed up on the BCRA litigation.

This week in the Legal Affairs Debate Club, Orin Kerr, Associate Professor of Law at the George Washington University Law School debates Susan Brenner, Professor of Law at the University of Dayton Law School. The topic is how the Fourth Amendment applies in a digital world. Professor Kerr argues that it is only matter of time before the Supreme Court has to decide decide how and when and the police can search a computer.

Balkinization has this post up titled, “Dred Scott and Kelo.” Professor Balkin argues that the closest analogy to the substantive due process argument in Dred Scott v. Sandford isn’t Roe v. Wade — its the dissenters’ position in Kelo v New London.

Underneath Their Robes has this update on law clerk hiring. Justice Ginsburg has now hired all her clerks for October Term 2006.

Tony Mauro asks, “Will Roberts Jump into the Supreme Court cert pool?”

Political Scientist Daniel R. Pinello has done this analysis of the language that the Justices use when describing certain classes of litigants. Specifically Pinello finds it troubling when Justices use the term “homosexual” instead of “gay and lesbian.”

An article in Texas Lawyer contends that, at least in Texas, United States v. Booker has not changed the sentences that judges are giving out. Sentencing Law & Policy comments on the article here.

This is another in a continuing series of reports on the impact Supreme Court decisions have on later rulings by lower courts — here, the impact of several statements by members of the Court over the years in the course of deciding Establishment Clause cases.

Using Supreme Court dicta in the absence of any controlling precedent from the Court, the Fourth Circuit on Wednesday upheld the government’s power to order public schools to conduct a daily recital by students of the Pledge of Allegiance, including its phrase “one Nation, under God.” It rejected a challenge to a daily recitation law in operation in Virginia public schools, which allows an opt-out by students who object themselves or whose parents or guardians object. (Opt-out students, though, must remain in the classroom during the recital.)

In three separate opinions, each covering somewhat different ground, the three judges on the Fourth Circuit panel agreed on one basic conclusion: the Pledge as now written is constitutional because Supreme Court Justices have said so over the years — but never in actually deciding a case on the issue. In the one Supreme Court case in which the Pledge’s constitutionality was directly at issue, the 2004 ruling in Elk Grove United School District v. Newdow, the Court declined to decide the issue, finding that the challenger there, California atheist Michael Newdow, did not have a legal right to bring his case. (Newdow, incidentally, is pursuing a new case through lower courts.)

Inevitably, the validity of the Pledge will return to the Supreme Court, perhaps in the very case just decided by the Fourth Circuit. (The attorney who brought that challenge, David H. Remes of Covington and Burling in Washington, said he and his client have not decided whether to seek further review.)

But the holding in that case (as distinguished from some of its rhetoric) is so determinedly tied to non-binding comments by the Justices that it essentially skirts at least two core questions: just why is the Pledge as written only a patriotic utterance, and can it be said with assurance that school children reciting it under state command would think of it only in that way? The Supreme Court, if it is ever to rule directly on the issue, would seem to be obliged to answer both.

Circuit Judge Karen J. Williams of Orangeburg, S.C., who wrote what appears to be the lead opinion in the Fourth Circuit case (Myers v. Loudon County Public Schools, et al., docket 03-1364), undertook to answer the first question, but not the second. Her opinion ultimately concludes that “the Pledge is by its nature a patriotic exercise, not a religious exercise.” She purports to find support for this conclusion in her reading of official acknowledgements of religion throughout American history — an exercise that neither of her colleagues joins and which one colleague (Circuit Judge Allyson K. Duncan of Raleigh, N.C.) suggests was questionable. But Williams, too, also relied upon the dicta of individual Justices through the years suggesting that the Pledge was constitutional when recited daily in public schools. That part of her opinion, which does draw the support of Duncan, notes — in partially italicized form — that “not one Justice has ever suggested that the Pledge is unconstitutional. In an area of law sometimes marked by befuddlement and lack of agreement, such unanimity is striking.”

No part of the Williams opinion (except the judgment) is supported by the third member, Circuit Judge Diana Gribbon Motz of Baltimore, who most openly concedes that she is guided solely by the Justices’ dicta. Without that “explicit guidance,” Motz writes, “this could be an extremely close case, requiring navigation through the Supreme Court’s complicated Establishment Clause jurisprudence.” Neither she nor Duncan wanted to navigate that meandering course.

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Yesterday we filed this petition, which involves application of the so-called Parratt-Hudson doctrine to a tenure employee’s due process right to a hearing before being terminated from public employment.